Judge to rule on motion to throw out case in dog attack

OROVILLE — A judge will rule Feb. 21 on two defense motions to dismiss charges against three charged for a May 21 dog attack in Palermo.

During arguments Thursday in Butte County Superior Court, defense attorney Philip Heithecker said the prosecution's failure to preserve evidence denied his client, Chic Gordon, her right to a fair trial.

At issue are the two dogs who reportedly attacked Virginia Lorusso on her property adjacent to Gordon's. Lorusso's left leg, right ankle and arm were injured.

Gordon, of Palermo, is charged with her son, Ruben Daniel Cambra, of Oroville, with a felony count of allowing a vicious animal at large. Theodore Jason Scherbensky, of Oroville, is charged with being an accessory after the fact for allegedly trying to conceal one of the dogs.

The animals were detained by Butte County Animal Control after the incident. Two civil court judges separately ruled that the dogs — a 70-pound pit bull named Gus and a 45-pound Queensland heeler named Shane — were vicious and ordered their destruction.

Heithecker said the defense had sought to keep the animals alive as evidence in the criminal case, but the prosecution filed a motion that the dogs wouldn't be retained as evidence.

Heithecker said the prosecution should have sought the advice of the criminal court.

The criminal court did consider a defense request to keep the dogs alive on Aug. 9, after the second judge ruled. Heithecker, who was appointed to the case Aug. 7, asked Judge William Lamb to order that the animals be kept alive.

Deputy district attorney Kennedy Rizzuto had argued the criminal court didn't have the jurisdiction to make such an order. An animal control officer told the court the dogs were anti-social and extremely aggressive with deteriorating health.

Lamb ultimately indicated the civil court had jurisdiction, but the bodies should be preserved.

The dogs were put down the following day.

On Thursday, Heithecker said the bodies were insufficient evidence and that the prosecution should have given him time to provide effective counsel to his client.

In one motion, a defense expert noted the dogs needed to be observed interacting with other dogs, their owners and strangers in order to determine whether they were aggressive or vicious.

Heithecker said the prosecution should have at least videotaped the dogs at Animal Control.

In a separate defense motion, another expert said it wouldn't be possible to compare the animals' teeth impressions with photos of the victim's injuries. The photos didn't include a ruler or other way to determine measurements.

Rizzuto responded that the prosecution took steps to notify defendants of the destruction order in order to preserve their rights.

She noted that while the defendants were litigating in civil court, they didn't make an effort to seek their own experts or to preserve evidence. There was a letter, possibly from Cambra, stating the animals had evidentiary value, but didn't specify what that value was.

Rizzuto also cited a prosecution expert who noted that an animal's behavior typically changes in custody and monitoring their behavior there had no evidentiary value. The prosecutor said evidence included witnesses, videos and the dogs' bodies.

Regarding the measurements, Rizzuto said the photos were taken while Lorusso was being treated for life-threatening injuries. It would've been improper for an officer to hold up such treatment to take photos with a ruler.

The prosecutor also said the victim was a medical patient, not under government care, and thus wasn't a subject for a motion to dismiss.

After hearing arguments, Judge Kristen Lucena said she would rule in three weeks.